Wednesday, September 14, 2016

More on How to Deal with CCP § 425.16(e)(4).

I wrote on this case the first time around back in 2014 . It’s a lawsuit brought by a city against three of its former council-members and a city administrator, seeking disgorgement of campaign contributions allegedly obtained as the result of graft in the awarding of a city garbage hauling contract. Defendants filed an anti-SLAPP motion, arguing that the action was based on their legislative votes on the contract—protected activity under Code of Civil Procedure § 425.16(b)(1) and (e). The City claimed that the motion fell under the exception for public enforcement actions under § 425.16(d) and that, in any event, legislative voting isn’t First Amendment protected. The trial court denied the motion and the Court of Appeal affirmed.

Due to the splits in authority, the Supreme Court granted review. There are basically two issues before the court, although the second has a couple of flavors. Does the public enforcement exception apply? And if not, is a legislative vote protected activity? The majority—Justice Corrigan joined by the Chief, and Justices Werdegar, Chin, and Cuellar—says no and yes. The dissent—Justice Liu writing for himself and Justice Kruger—says no to both.

Section 425.16(d) creates an exception for “any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” The question is how broadly to construe that language. A couple of cases—City of Long Beach v. California Citizens for Neighborhood Empowerment, 111 Cal. App. 4th 302 (2003) and City of Los Angeles v. Animal Defense League, 135 Cal. App. 4th 606 (2006)—took a relatively broad reading, holding that it applies to an action brought by a local government entity to enforce laws designed to protect the public. The reasoning—which reads the words “brought in the name of the people of the State of California” out of the statute—was based on a somewhat (errr) aggressive reading of the legislative history of statutes other than the enactment of § 425.16. On the other hand, a later case—City of Colton v. Singletary, 206 Cal. App. 4th 751 (2012)—read § 425.16(d) to its words, declining to apply it to an action that was not brought on behalf of “the people.”

The Court agrees with the plain meaning: to fall within § 425.16(d), a case must be (1) an enforcement action; (2) brought “in the name of the people of the State of California”; and (3) brought “by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” The case here was brought in the name of the city, in its own name, and by retained private counsel to obtain disgorgement of the campaign contributions. So the exception doesn’t apply.

The protected activity issue is a little tougher. The main argument is that the US Supreme Court held in 2011 that voting by a legislator is not actually protected by the First Amendment. Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011). Under Carrigan, a legislator’s vote is not his or her own expression, but instead “the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal.” As I pointed out in my prior post, the problem with this argument is that not actually being constitutionally protected generally doesn’t get you out of “protected activity” because “protected activity” is defined by the four categories in § 425.16(e) and not by any kind of analysis of First Amendment law. So the Court here holds that the advocacy on behalf of the garbage contract and ultimately the voting in favor of it fall within the protections for written or oral statements before or in connection with an issue under consideration in a legislative proceeding under § 425.16(b)(1) and (2).

The majority goes on to reject that the effort to invoke Flatley exception for plainly illegal conduct applies because the defendants don’t admit the illegality and the City didn’t prove it as a matter of law. That’s a pretty straightforward application of Flatley.

Finally, the Court addresses the concern that affording anti-SLAPP protection to legislative activity will chill litigation brought to challenge legislative decisions. It notes that its decision applies only to suits against legislators individually, and not to suits directly against government bodies. The Court points out that that was the crux of the court of appeal’s mistake in this case—a failure to distinguish cases challenging government decisions—official acts to which the anti-SLAPP statue won’t apply—from cases challenging the acts of individual officials in their personal capacities—to which it sometimes does.

Justice Liu’s dissent says that the majority makes it harder to enforce anti-corruption laws. He would follow Carrigan and hold that voting isn’t protected activity. As he sees it, although the speech leading up to, advocating or explaining a vote might count under §425.16(e)(1) or (2), the vote isn’t a statement or a symbolic act—it is the expression of legislative power. Thus, it really can’t fall within those two categories, which are addressed to “statements” and “writings.” He notes that—although the majority doesn’t really say so—to get out of that requires at least tacit resort to the catchall in (e)(4), which applies to “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” And since legislative voting isn’t actually protected expression, it can’t be conduct in furtherance.

Although Justice Liu doesn’t delve too deeply into it, I think this is a really important point about the nature of the (e)(4) catchall. If you lurk around here for a while, you might know that the conundrum of how to handle (e)(4)—and the courts’ general failure to come up with a coherent theory on it—is a bitof a petissue for me. “Conduct in furtherance of free speech or petitioning” can literally mean all sorts of stuff, some of it pretty nefarious—e.g., wiretapping in furtherance of litigation or sex discrimination in furtherance of reporting the news—but the courts have to date failed to come up with a cogent way to interpret that language to consistently avoid these bad results.But what Justice Liu intimates, at least, is that while (e)(1)–(3) can be literally applied independent of the constitutional merits of a question, (e)(4) really cannot.

He really doesn’t get this far, but the structure of the statute strongly points to this result. Section 425.16(b)(1) says the anti-SLAPP statute protects against claims “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Then § 425.16(e) defines that phrase by reference to its four categories—the three categories of “written or oral statements or writings” in (e)(1)–(3) along with (e)(4)’s catchall for “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” As the majority explains, (e)(1)–(3) are “objective guidelines that lend themselves to adjudication on [a] pretrial motion.” But (e)(4) really isn’t. It doesn’t lend itself to a mechanical application. Indeed, read purely literally (e)(4)’s definition of (b)(1)’s “act in furtherance . . .” as “any other conduct in furtherance” is essentially a tautology. The only way out of that trap is to imbue (e)(4)’s reference to conduct in furtherance with the power to actually answer the question posed by Justice Liu: Is this kind of conduct actually in furtherance of the rights of speech or petition under the federal or state constrictions?

Just reading “furtherance” as asking if the conduct “helps” an expression related the goal—as some courts have—doesn’t make any sense and leads to bad results. E.g., rubbing out an adverse witnesses might “help” you win a litigation, but the Legislature can’t really have meant to protect that. On the other hand, the opposite extreme—requiring a movant under (e)(4) to actually prove that its conduct is fully constitutionally protected—probably goes too far and rubs against the Legislature’s decree for a broad construction. But if the kind of conduct at issue is clearly not subject to constitutional protection as a matter of law—stuff like bribery, wiretapping, race and sex discrimination, computer hacking (all addressed in the (e)(4) case law)—the defendant shouldn’t be able to take cover under (e)(4). Otherwise, you sanction the misuse of the statute in a way that chills legit ligation against bona fide bad stuff.

In any event, there’s a half-written law review article on this point that’s been somewhere on my hard drive for like the past two years, Maybe now I’ll have some motivation to finish it. (If I only had the time . . .)

Finally, I should note that the Court doesn’t address the alternative way to deny the motion I addressed in my post on the case below: Regardless of whether voting is “protected activity” does a lawsuit seeking to obtain disgorgement of funds obtained through graft really arise from the vote? Or does it arise from the taking of the money. Is it the quid or is it the quo? Maybe that’s a closer issue than I let on, and there’s no indication that the parties raised it in their briefing, but it seems like a decent way to sidestep the tricky dispute between the majority and the dissent. I suppose someone could raise it in the Court of Appeal on remand.